TMI Blog1990 (4) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... cellent service career. The appellant was further promoted to the next higher post of Industrial Economist by notification dated September 24, 1983 with effect from December 19, 1978 in the scale of Rs. 1350-2000. 3. Because of excellent character role and merit of the appellant, he was promoted to the next higher post of Joint Director in his original scale of pay of Rs. 1350-2000 with 20 per cent personal pay for holding such higher post which he held from September 24, 1983 to March 31, 1984. From April 1, 1984 the appellant was provided with the higher post of General Manager under the respondent-State in its Industries Department. 4. The respondent-State issued a notification on September 16, 1988 promoting a large number of juniors to the higher scale of Rs. 1575-2300 without considering the case of the appellant. 5. Being aggrieved the appellant filed one representation against his supersession which was made without considering the case of the appellant. The representation was filed on October 7, 1988. In the said representation the appellant brought to the notice of the respondent-State that the service record of the appellant throughout remained excellent, integr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the notice. Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government. Provided further that in case of officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi), under the rule marking authority of the Chief Justice, no such officers and servants under suspension shall retire from service except with the specific approval of the Chief Justice. Rule 74(b)(ii): The appointing authority concerned may, after giving a Government servant at least three months' previous notice in writing, or an amount equal to three months' pay and allowances in lieu of such notice, require him in public interest to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. 12. On a plain reading of the said Rule it appears that the appointing authority has been conferred power to retire a government servant from service in public interest after giving three months' prior notice in writing or an amount equal to three months' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be set aside and quashed. 14. It has, on the other hand, been urged on behalf of the respondent-State that the impugned order has been made under Rule 74(b)(ii) of Bihar Service Code in public interest and there is nothing to show from the order itself that it has been made by way of punishment and it casts a stigma on the service career of the appellant. The language of the order is innocuous. The appellant cannot delve into the secretariat files to find out the basis of the order. Some decisions have been cited at the bar in support of this submission. 15. Rule 74(b)(ii) of the Bihar Service Code confers power on the Appointing Authority to compulsorily retire a government servant on his attaining 50 years of age or after completing 30 years of qualifying service in public interest. The object of this rule is to get rid of the government servant who has become dead wood. This order is made only to do away with service of only those employees who have lost their utility, become useless and whose further continuance in service is considered not to be in public interest. In the instant case the appellant has an unblemished career and undoubtedly by dint of his merit and flaw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lapses and foul play against him had been conducted respectively by Deputy Development Commissioner, Dumka, Deputy Commissioner, Dumka and Additional Director of Industries, Bihar, Patna. The above charges were proved such as: (i) The charge of registration of bogus unit had clearly been established; (ii) Allegations of recommendations and sanction of capital subsidy on D.G. sets to bogus units have been proved; (iii) Where there were no D.G. sets and the unit was bogus, subsidy had been sanctioned against the departmental instructions; (iv) Seed money had been sanctioned to non-existent units and payments made in violation of Government orders; (v) Registration had been done for restricted items; (vi) Subsidy on D.G. sets had been sanctioned and payments made to units located outside his jurisdiction; and (vii) Appointment of persons had been made on, ad hoc basis beyond his delegated powers in gross violation of Government rules. (6) That in the above mentioned cases registration; recommendations and payments had been made by the petitioner (appellant) after making personal inspections of the units which facts are sufficient to prove that he had commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry reports done by the different officers without there being any notice or getting any other version and this sort of memorandum cannot be said to be a fair memorandum in the eyes of law and so any action taken by the State Government on the basis of the said Memorandum is bad and violative of Article 14 and 16 of the Constitution of India. 20. It is thus, clear and evident from the counter-affidavit filed on behalf of the State Government referred to hereinbefore that the basis of the impugned order of compulsory retirement from service of the appellant is not in public interest as stated in the order of compulsory retirement dated October 26, 1988. The impugned order, in fact, has been passed on the basis of the memorandum dated October 6, 1988 which is also based on the Report given by the Deputy Development Commissioner, Dumka by his letter dated September 19, 1987 without asking any explanation from the appellant and without giving him any opportunity to defend his case before the Deputy Development Commissioner. It is, therefore, wrong to say that the basis of the order is not the said memorandum as well as the report of the Deputy Development Commissioner which clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. This decision does not, in any way, apply to this case for the simple reason that in the affidavit-in-counter filed by the respondent State it has been categorically stated that while passing the impugned order of compulsory retirement the officers concerned were guided by the report dated September 19, 1987 submitted by the Deputy Development Commissioner, Dumka who stated in his report that the appellant was responsible for the grave and serious financial irregularities resulting in financial loss to the State Government, without giving any opportunity of hearing and without intimating the allegations to the appellant before forming his opinion. The said report was taken into consideration and memorandum in question was issued on October 26, 1988 by the Additional Secretary, Industries Department, Government of Bihar wherein it has been clearly stated that the impugned order of compulsory retirement was made as the said misconduct on the part of the appellant tarnished the image of the Government in the public. This categorical statement made in the affidavit-in-counter clearly proves that the basis of making the order of compulsory retirement of the appellant from the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no adverse entries at least for five years immediately before the compulsory retirement cannot be compulsorily retired on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. 26. In the case of Union of India v. Col. J.N.. Sinha and Anr. (1970) IILLJ 284 SC it has been observed by this Court that: Fundamental Rule 56(i) does not in terms require that any opportunity should be given to the concerned Government servant to show cause against his compulsory retirement. It says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. If that authority bona fide forms that opinion the correctness of that opinion cannot be challenged before courts, though it p is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. 27. In Shamsher Singh and Anr. v. State of Punjab (1974) IILLJ 465 SC the appellant Shamsher Singh was a Subordinate Judge on probation, His services were terminated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of termination is in infraction of Rule 9 which makes it incumbent upon the authority that the services of a probationer can be terminated on specific fault or on account of unsatisfactory record implying unsuita-bility. The order of termination was, therefore, set aside. 29. This judgment has been followed in the case of Anoop Jaiswal v. Government of India and Anr. (1984) ILLJ 337 SC . It has been observed that: It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. 30. It has also been observed that: Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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